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Friday, May 24, 2024

The "It's Not Protest If...." Fallacy

A trope I have seen often in the recent campus and off-campus protest discussion is that some activity or other is "not protest" if it doesn't involve some form of transgression, rule-violation, or disruption. This would seem not to be a specifically legal point; and for the most part, under a common reading of the First Amendment, it wouldn't be. But it comes up in what we might call First Amendment-ish or free-speech-adjacent public discourse, in a way that has some legal, or I guess legal-ish, significance. Surely this trope is wrong. 

A mild version of this kind of proposition comes up in Chicago philosophy professor Anton Ford's recent erroneous op-ed in the Chronicle of Higher Education about the Kalven Report. Ford writes: "Protest is essentially disruptive; if it’s not disruptive, it’s not a protest. While not all protests are equally disruptive, all aim to disrupt normal life to at least some extent. A ban on 'disruptive protest' is a ban on protest tout court."

It's easy enough, even without going to Twitter, to find examples of cruder versions of this sentiment that go past the "disruptive" point. People adopting such a position argue that protest necessarily involves rule-breaking: "It's not a protest if you have to ask permission." "If it’s 'acceptable,' it’s not a protest. If you’re not pissing people off, you’re not protesting hard enough." Demonstrations, as an ideal type, "defy the authorities." All of these are actual quotes. I can provide more exact examples from Twitter, and would do so were I not semi-debarred from using them. And although the chance of their being stupid increases substantially simply virtue of their being on Twitter and Instagram, so would the relevance of such assertions, given how many people conduct a version of public discourse and debate on these issues there. (The truth is that if one wants to research and discuss these kinds of issues, one must look at social media platforms--even, Lord help us, if one just wants to know what academics, and not normal people, think, given the awful habits of contemporary academics. So I do look. But I still find it better to avoid citing those platforms and to avoid going to those poisoned wells too often. I find myself nauseated by even short exposure, and other than for research purposes I find that the benefits of staying away far outweigh whatever I lose in terms of awareness of the anecdotal outrage of the day. Your mileage, I will say politely but insincerely, may vary.) 

On social media, especially, assertions and arguments like this do bleed into free speech law--or perhaps "'free speech' 'law,'" in the sense that there is a difference between a thing A and the object A-prime, or between Hancock Park and "Hancock Park adjacent." Protest, this line of thinking runs, is a fundamental, long-recognized aspect of free speech. And protest is--on this view--definitionally transgressive, disobedient, rule-or law-breaking, disruptive. It follows that it must violate the First Amendment to break up or make arrests at an encampment, march, demonstration, etc., even if the protesters were, say, violating clearly established rules or laws, engaging in obvious trespass or worse, and so on. Versions of this argument have been presented as Hail-Mary attempts by individual January 6 rioters. And similar arguments have been made, and taken seriously, in public discussion of the campus protests and the responses of universities and local officials. People making these arguments have included professors, although not generally law professors.   

There is something to the argument that protest is generally disruptive, I think. Even there, I doubt it's right to say protest is necessarily disruptive. Thousands of people may seek a permit to gather in a large park or public gathering place that has long been a prominent site for such assemblies, in order to visibly protest something like American involvement in a war. While they are there, say for a pre-arranged span of twelve hours, clearly the space cannot be used by others, and people strolling nearby may be disturbed or inconvenienced. But it's all been planned in advance, the authorities have had time to manage it and deal with contingencies such as waste disposal and security, and the crowd leaves when it's all done. That's a protest, surely. But is it really "disruptive?" Nominally, yes, perhaps; but in the sense in which some of the writers above or elsewhere mean it? I doubt it. It's certainly not transgressive.

One could come up with other examples. Protests and demonstrations happen all the time by pre-arrangement, often involving mass gatherings (obviously so for demonstrations, although an individual can protest, a la Hyde Park) and perhaps some level of planned "disruption." They are to actual disruption a little like what a scheduled work of performance art in a gallery is to real life. The organizers may even work closely and collegially with the authorities. Of course we may have concerns about officials using their permitting or licensing power arbitrarily or invidiously. In such a case there may be good reason to march without legal permission and without regard to legal proscriptions. But in theory, if that system were acting justly, people would have the right to seek an advance permit to make use of a public forum for purposes of peaceable, lawful assembly in order to protest. Is that "not a protest?"

Indeed, in a just society--a just actual society, not a "just society" in a just-this-side-short-of-Heaven hypothetical sense, in which all issues on which people disagree have been settled--we would likely still have assemblies, protests, and the like. And the ability to protest would be equally available to all, conducted under a fair and reasonable permitting system, and conducted thoughtfully with regard to the interests of others. They would be an effective exercise of voice for purposes of mass expression, and they might be somewhat "disruptive"--but, although they would still unquestionably be protests, they would not involve transgression or rule-violation. It's a point actually worth considering, not just by way of disagreement with the "it's not a protest if" trope, but because it suggests that protests, demonstrations, and assemblies have a function in any liberal society, including a fairly just, and justly administered, one--and that this function is not limited to those gatherings that "defy the authorities."

In short, the whole trope, common though it may be, is wrong. At best, it involves either a vacuously large definition of "disruption," or is simply a misdescription, in which "protest" is treated, wrongly, as a synonym for "civil disobedience." At worst, to the extent it is common or frequently voiced, it encourages participants and onlookers (including professorial onlookers) to misunderstand free speech as a legal doctrinal matter.

Incidentally, for a careful discussion of these issues, check out this paper on demonstrations by Jeremy Waldron. He offers a definition of demonstrations on page 38 that includes the line above about defying the authorities. I don't agree with his definition, obviously, and would pick nits with other aspects of the paper. But it's very good.   

Posted by Paul Horwitz on May 24, 2024 at 01:21 PM in Paul Horwitz | Permalink


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